Factors The Court Considers In Determining Whether To Award Spousal Support Pt. 1

By Anne Shale&nbsp&nbsp&nbsp|&nbsp&nbsp&nbspApril 10th, 2008

When discussing whether or not a Court will award spousal support, formerly known as alimony, to one of the parties in a divorce proceeding, we must first define what spousal support is. Section 3105.18 of the Ohio Revised Code defines “spousal support” as being “any payment or payments to be made to a spouse or former spouse, or to a third party for the benefit of a spouse or former spouse, that is both for sustenance (maintenance or means of livelihood) and for support of the spouse or former spouse.”

Webster’s New World Dictionary does not define “spousal support” but defines “alimony” as “money a court orders paid to a person by that person’s legally separated or divorced spouse”. While the Ohio Revised Code utilizes the term “spousal support” in Chapter 31 relative to Divorce, Annulment, and Dissolution of Marriage, the Internal Revenue Code governing the payment of federal income taxes continues to use the term “alimony” in lieu of the term “spousal support”.

Further, Ohio Revised Code Section 3105.18(C)(1) reflects the following language: In determining whether spousal support is appropriate and reasonable, and in determining the nature, amount, and terms of payment, and duration of spousal support, which is payable either in gross or in installments, the Court shall consider all of the following factors:

[a]:

The income of the parties, from all sources, including, but not limited to, income derived from property divided, disbursed, or distributed under Section 3105.171 of the Ohio Revised Code. Practically speaking, the Court must know what each party earns at the time of the divorce proceeding. Generally, there is a “financially advantaged” spouse and a “financially disadvantaged” spouse. It is the spouse with the greater income who might be ordered to pay spousal support to the spouse having the lesser income. The Court also wants to be advised if either or both parties receive any of the following benefits:

-retirement benefits from any and all sources;

-disability benefits from any and all sources;

-trust or annuity income from any and all sources;

-workers’ compensation benefits;

-unemployment benefits;

-any other source of benefits from lottery winnings to benefits from a personal injury

or medical malpractice settlement.

[b]:

The relative earning ability of the parties. With this factor, the Court examines the educations and workplace training/job skills of the parties and looks for the earning history of the parties. For example, if Husband is a neurosurgeon or orthopedic surgeon, he can be expected to have above-average earnings; and if Wife has been a “stay at home” Mom with a nursing education, it can be expected that Wife will need time and money to regain the skills necessary to re-enter the job force.

[c]:

The ages and the physical, mental, and emotional conditions of the parties. With this group of factors, the Court is trying to determine if this person is too old to even enter the work force or does the party have physical, mental, or emotional conditions that would preclude the possibility of finding meaningful employment. Persons with chronic health problems may find it difficult to find employment as employers are looking for healthy employees, and although employers are NOT to discriminate on the basis of disability, it may still be difficult for a party with an obvious disability to find a position of employment.

[d]:

The retirement benefits of the parties. The Court will want to know if either party has worked for an employer having pension or retirement benefits available upon retirement. If the party does have retirement benefits available, what amount of income can the worker expect to receive upon retirement. If either party has served in the military, the Court will want to know if either party has served the requisite number of years to have earned military retirement benefits. Some parties faced with divorce will only have Social Security benefits available to them upon reaching retirement age. It is important to note that if the parties have been married for at least ten or more years, the Wife, usually the party with lower history of total earnings, has the ability to receive Social Security based upon the earnings history of her Husband, usually the party with the higher history of total earnings.

Wife would have to take responsibility for going to a local Social Security Office with her certified copy of her Final Judgment and Decree of Divorce to determine if she would receive greater Social Security benefits based upon her own earnings record or if she would receive greater benefits by receiving one-half of her Husband’s Social Security benefits. If Wife elects to receive Social Security benefits based upon her former Husband’s earnings history, Husband still receives his full Social Security entitlement.

About The Author: Anne ShaleAnne Shale is of counsel to Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues. She is a former registered nurse and concentrates her practice in Family Law and Divorce cases.